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2018 Supreme(SC) 398
SUPREME COURT OF INDIA
A.K. SIKRI, ASHOK BHUSHAN, JJ.
M/s. Advanta India Ltd. - Appellant
Versus
B.N. Shivanna - Respondent
Civil Appeal No. 11113 of 2016
Decided On : 21-02-2018
Advocate Appeared:
For the Appellant : Mr. B.K. Sampath Kumar, Mr. Balaji Srinivasan, Ms. Vaishnavi Subrahmanyam, Ms. Pratiksha Mishra, Mr. Abhishek Bharti
For the Respondent: Mr. Aljo K. Joseph, Mr. Sayooj Mohandas M., Mr. Vishal Arun
The main legal point established in the judgment is that the review power of the Disciplinary Committee of the Bar Council of India is not to be extended to the extent that it becomes an appellate authority over its own order, and a party cannot take advantage of its own wrong.
Headnote:
Review Power - Disciplinary Committee of Bar Council of India - Advocates Act, 1961 - Section 48AA - Summary Suspension of Advocate - Misconduct - Forgery - Fraud - Misrepresentation - Review of Order - Fair Trial - Natural Justice
Fact of the Case:
The appellant company filed a complaint against the respondent, an Advocate, alleging serious professional misconduct. The respondent was accused of swindling the appellant company by fabricating criminal cases and extracting large sums of money through illegal means. The State Bar Council found the respondent guilty and debarred him for life. The Bar Council of India (BCI) reduced the punishment on appeal, but the respondent filed a review petition seeking further reduction. The BCI allowed the review petition, citing denial of fair trial due to lack of opportunity to cross-examine a witness. The appellant company challenged this decision in court, arguing that the BCI exceeded its review powers.
Finding of the Court:
The court found that the BCI's review of its own finding of fact and overturning the same on the same material and arguments was beyond review jurisdiction. The court held that the BCI showed undue indulgence to the respondent and allowed him to take advantage of his own wrong. The court set aside the BCI's order and reinstated the earlier order reducing the respondent's punishment. The court also permitted the appellant to seek restoration of their appeal for a decision on merits.
Issues: The main issues were the scope of review power of the Disciplinary Committee of the Bar Council of India, the denial of fair trial, and the extent of the BCI's authority to review its own findings.
Ratio Decidendi: The court held that the BCI exceeded its review powers by revisiting the issue on the pretext of denial of fair trial, and that the BCI's review jurisdiction cannot be extended to the extent that it becomes an appellate authority over its own order. The court also emphasized that a party cannot take advantage of its own wrong, citing the maxim 'Nullus Commodum Capere Potest De Injuria Sua Propria.'
Final Decision: The court allowed the appeal, set aside the BCI's order, and reinstated the earlier order reducing the respondent's punishment. The appellant was permitted to seek restoration of their appeal for a decision on merits.
JUDGMENT :
A.K. Sikri, J.
An important question of law that needs to be determined in this appeal pertains to the power of review with the Disciplinary Committee of the Bar Council of India (BCI). On a complaint filed by the appellant against the respondent, who is an Advocate, alleging the commission of serious acts of professional misconduct, with the Karnataka State Bar Council, the complaint was referred to its Disciplinary Committee. It examined the matter after giving due opportunity to both the parties to lead their respective evidences and held the respondent guilty of the charges of misconduct levelled against him. As a sequitur, the order dated July 31, 2005 was passed by the State Bar Council whereby the respondent was debarred from practicing for life and his name was also removed from the rolls of the Bar Council.
2. Statutory appeal was preferred by the respondent before the BCI which disposed of the said appeal vide the Order dated September 10, 2011. It reduced the punishment awarded to the respondent by debarring him for a period of 18 months, along with fine of Rs.25,000/-. The respondent filed the review petition under Section 48AA of the Advocates Act, 1961 seeking review of order dated September 10, 2011 by the BCI. The Bar Council has allowed the review petition vide order dated July 11, 2015 by setting aside the previous order and directing fresh consideration of the matter. It is this order passed in the review petition which is impugned in these proceedings.
3. Having given the aforesaid introductory remarks, we may now state the fact of the matter in detail:
As per the complaint of the appellant company, it is engaged in the research, production and distribution of seeds and hybrids such as sunflowers, maize, cotton, rice, bajra and sorghum. The respondent herein has a long history with the appellant company who initially joined them as a Marketing Executive in 1998. However, he left that job after a brief period and then returned in the capacity of Legal Counsel. According to the appellant, it was at this juncture that devised an elaborate ploy to swindle the appellant company out of lakhs of rupees. It all began when a Police Constable came to the appellant’s office multiple times, beginning in September, 2000, claiming that he was there to execute warrants against the Managing Director, CFO and other top executives of the appellant company. The appellant automatically called their legal counsel, i.e. the respondent herein, to deal with the issue. The respondent had a long conversation with the Police Constable at the end of which he informed the appellant that numerous farmers had apparently filed complaints against the company and it was these large numbers of complaints the Police Constable was concerned with. Each visit of the Constable’s followed the same pattern.
4. The appellant further alleged in the complaint that the respondent then advised the appellant company to file 631 criminal petitions to quash the alleged complaints filed against them. He painted a picture where the arrest of the appellant’s top executives was imminent and further went to contend that this dire situation could only be staved off if the criminal petitions were filed. He introduced Ms. Gowri as the vendor from whom the stamps for court fees would be purchased. The respondent stated that each petition would require a court fee of Rs.10,000/- (Rupees Ten Thousand only) to be filed – a statement that is blatantly false. Misled by the respondent, the appellant remitted Rs.62,51,259/- (Rupees Sixty Two Lakh Fifty One Thousand Two Hundred and Fifty Nine only) towards court fees for filing the criminal petitions. In order to make his lie believable, the respondent issued a receipt signed by Ms. Gowri for the amount received as the court fees. Further, respondent also stated that other counsels were required to deal with the criminal petitions and urged the appellant company to retain three persons he introduced as CC Narayana, D.
